Book: Our Legal Heritage, 4th Ed.

S >> S. A. Reilly >> Our Legal Heritage, 4th Ed.




"Concerning wrecks of the sea, where a man, a dog, or a cat
escape alive out of the ship, that such ship nor barge nor
anything within them shall be deemed wreck, but the goods
shall be saved and kept by view of the Sheriff, Coroner, or
the King's Bailiff". If anyone proves the goods were his
within a year and a day, they shall be restored to him
without delay. Otherwise, they shall be kept by the King.
"And where wreck belongs to one other than the King, he
shall have it in like manner". If he does otherwise, he
shall be imprisoned and pay damages and fine.

Some statutes applied only to Kent County, which had a
unique position between London and the continent. One could
sell or give away his land without the consent of one's
lord. The services of the land, however, could only be sold
to the chief lord. Inheritance of land was to all sons by
equal portions, and if there were no sons, then to all
daughters in equal portions. The eldest brother has his
choice of portion, then the next oldest, etc. The goods of a
deceased person were divided into three parts after his
funeral expenses and debts were paid. One third went to the
surviving spouse. One third went to the deceased's sons and
daughters. One third could be disposed by will of the
decedent. If there were no children, one half went to the
spouse and one half went according to will. If an heir was
under 15 years old, his next of kin to whom inheritance
could not descend was to be his guardian. A wife who
remarried or bore a child lost her dower land. A husband
lost his dower if he remarried. If a tenant withheld rent or
services, his lord could seek award of court to find
distress on his tenement and if he could find none, he could
take the tenement for a year and a day in his hands without
manuring it. It the tenant paid up in this time, he got the
tenement back. If he didn't within a year and a day,
however, the lord could manure the land. A felon forfeited
his life and his goods, but not his lands or tenements. A
wife of a felon had the dower of one half or her husband's
lands and tenements.

The common law recognized the tort of false imprisonment if
a man arrested as a felon, a person who was not a felon.




- Judicial Procedure -

The writ of Quo Warranto [by what right] is created, by which all
landholders exercising jurisdictions must bring their ancestors'
charters before a traveling justice for the Common Pleas for
examination and interpretation as to whether they were going
beyond their charters and infringing upon the jurisdiction of the
Royal Court. As a result, many manor courts were confined to
manorial matters and could no longer view frankpledge or hear
criminal cases, which were reserved for the royal courts. In the
manor courts which retained criminal jurisdiction, there was a
reassertion of the obligation to have present a royal coroner,
whose duty it was to see that royal rights were not infringed and
that the goods of felons were given to the Crown and not kept by
the lords.

The supreme court was the king and his council in Parliament. It
heard the most important causes, important because they concern
the king, or because they concern very great men (e.g.treason), or
because they involve grave questions of public law, or because
they are unprecedented. It has large, indefinite powers and
provides new remedies for new wrongs. The office of great
justiciar disappears and the chancellor becomes the head of the
council. After the council were the royal courts of the King's
Bench, Common Pleas, and the Exchequer, which had become separate,
each with its own justices and records. The Court of Common Pleas
had its own Chief Justice and usually met at Westminster. This
disadvantaged the small farmer, who would have to travel to
Westminster to present a case. The King's Council maintained a
close connection with the Court of the King's Bench, which heard
criminal cases and appeals from the Court of Common Pleas. It
traveled with the King. There were many trespass cases so heard by
it in the reign of Edward I. The King's Council did a great deal
of justice, for the more part criminal justice. It was supported
by the populace because it dealt promptly and summarily with
rebellion or some scandalous acquittal of a notorious criminal by
bribed or partial jurors, and thereby prevented anarchy. Its
procedure was to send for the accused and compel him to answer
upon oath written interrogatories. Affidavits were then sworn upon
both sides. With written depositions before them, the Lords of the
council, without any jury, acquit or convict. Fines and
imprisonments were meted out to rioters, conspirators, bribers,
and perjured jurors. No loss of life or limb occurred because
there had been no jury.

In criminal cases, witnesses acquainted with particular facts were
added to the general assize of twelve men from each hundred and
four men from each town. The assize then bifurcated into the grand
jury of twelve to twenty-four men and the petty jury or jury of
verdict of twelve men, which replaced ordeal, compurgation, and
trial by combat as the method of finding the truth. The men of the
petty jury as well as those of the grand jury were expected to
know or to acquaint themselves with the facts of the cases. The
men of the petty jury tended to be the same men who were on the
grand jury.

Felony included such crimes as homicide, arson, rape, robbery,
burglary, and larceny. Murder still meant secret homicide.
Burglary was an offense committed in times of peace and consisted
of breaking into churches, houses, and into the walls and gates of
villages and boroughs. These six offenses could be prosecuted by
indictment or private accusation by an individual. The penalties
involved loss of life or limb or outlawry; a felon's goods were
confiscated by the crown and his land was forfeited to the crown
for a year and a day, after which it escheated to the felon's
lord. The peace of the king now did not die with the king, but
renewed automatically without an interval before the inauguration
of a new king.

Notorious felons who would not consent or put themselves on
inquests for felonies with which they were charged at royal courts
were put in strong and hard imprisonment to persuade them to
accept trial by assize. This inducement progressed into being
loaded with heavy chains and placed on the ground in the worst
part of the prison and being fed a only little water one day and a
little bread the next. Sometimes pieces of iron or stones were
placed one another onto their prone bodies to persuade them to
plead. This then developed into being loaded with as much iron as
could be borne, and finally into being pressed to death ["peine
forte et dure"]. Many of these men chose to die by this pressing
so that their families could inherit their property, which would
have been forfeited if they had been convicted of serious crimes.

The most common cases in the Court of Common Pleas were "detinue"
[wrongful detention of a good or chattel which had been loaned,
rented, or left for safe-keeping with a "bailee", but belonged to
the plaintiff], "debt" [for money due from a sale, for money
loaned, for rent upon a lease for years, from a surety, promised
in a sealed document, or due to arbitrators to whom a dispute had
been submitted] and "account" [e.g. against bailiffs of manors, a
guardian in socage, and partners]. It also heard estovers of wood,
profit by gathering nuts, acorns, and other fruits in wood, corody
[allowance of food], yearly delivery of grain, toll, tunnage,
passage, keeping of parks, woods, forests, chases, warrens, gates,
and other bailiwicks, and offices in fee.

The itinerant justices gradually ceased to perform administrative
duties on their journeys because landed society had objected to
their intrusiveness. Edward I substituted regular visitations of
justices of assize for the irregular journeys of the itinerant
justices. Each one of four circuits had two justices of assize.
From about 1299, these justices of assize heard cases of gaol
delivery. Their jurisdiction expanded to include serious criminal
cases and breach of the king's peace.

Breaches of the forest charter laws were determined by justices of
the King's forest, parks, and chases, along with men of assize.

Coroners' inquest procedures were delineated by statute and
included describing in detail in the coroner's rolls every wound
of a dead body, how many may be culpable, and people claiming to
have found treasure who might be suspects.

The precedent for punishment for treason was established by the
conviction of a knight, David ab Gruffydd, who had turned traitor
to the Welsh enemy, after fighting with Edward and being rewarded
with land, during the conquest of Wales. He had plotted to kill
the King. He was found guilty of treason by Parliament and
condemned to be dragged at the heels of horses for being a traitor
to his knightly vows, hanged by the neck for his murders, cut down
before consciousness left him to have his entrails cut out for
committing his crimes during the holy week of Easter, and his head
cut off and his body divided into four parts for plotting against
the King's life. The head was placed on the Tower of London and
his body sections were placed in public view at various other
locations in England. This came to be known as "hanging, drawing,
and quartering". Prior to this the penalty had been imprisonment,
usually followed by ransom.

Trial by combat is now limited to certain claims of enfeoffment of
large land holding and is barred for land held in socage, burgage,
or by marriage. Assize is the usual manner of trial, but
compurgation remains in the borough court long after it becomes
obsolete in the royal courts. Defendants no longer request assizes
but are automatically put to them.

Numerous statutes protect the integrity of the courts and King's
offices by double and treble damages and imprisonment for offenses
such as bribery, false informers, conspiracy to falsely move or
maintain pleas, champerty [covenant between a litigant and another
for the other to have a part or profit in the award in return for
maintaining the suit], conflict of interest by court officers
taking part in a quarrel pending in court or working any fraud
whereby common right may be delayed or disturbed. There had been
many abuses, the most common of which was extortion by sheriffs,
who gaoled people without cause to make them pay to be released.
The 1275 prohibition of maintenance of a quarrel of a party in
court by a non-party was extended in 1327 to all persons,
including the king's councilors and ministers, and great men, e.g.
by sending letters. In 1346, this prohibition specifically
included prelates, earls, barons taking in hand quarrels other
than their own, or maintaining them for gift, promise, amity,
favor, doubt, or fear, in disturbance of law and hindrance of
right. The reason given was that there had been persons
disinherited, delayed or disturbed in their rights, and not guilty
persons convicted or otherwise oppressed. All great men were
required to put out of their service all maintainers who had been
retained, and void their fees and robes, without giving them aid,
favor, or comfort. This law was not obeyed.

The king reserved to himself and his council in its judicial
capacity the correction of all breaches of the law which the lower
courts had failed to remedy, whether from weakness, partiality,
corruption, or jury timidity, and especially when the powerful
barons defied the courts. The Chancery also sought to address
causes which were impeded in their regular course, which often
involved assaults, batteries, and forcible dispossessions.

Disputes within the royal household were administered by the
King's steward. He received and determined complaints about acts
or breaches of the peace within twelve miles around the King's
person or "verge". He was assisted by the marshall in the "court
of the hall" and by the clerk of the market when imposing fines
for trading regulation violations in the "court of the market".

Ecclesiastical courts were successful in their competition with
the secular courts for jurisdiction over testamentary matters
[concerning wills] and succession [no will] to chattels.

There were local courts of the vill, borough, manor, hundred,
county, sheriff, escheator, and royal bailiff, with overlapping
jurisdictions. The county court in its full session, that is, as
it attended the itinerant justices on their visitation, contained
the archbishops, bishops, priors, earls, barons, knights, and
freeholders, and from each township four men and the reeve, and
from each borough twelve burgesses. It was still the folkmote, the
general assembly of the people. In 1293, suitors who could not
spend 40s. a year within their county were not required to attend
their county court.

The most common plea in the hundred court was trespass. It also
heard issues concerning services arising out of land, detention of
chattels, small debts, wounding or maiming of animals, and
personal assaults and brawls not amounting to felony. It met every
three weeks. The sheriff held his turn twice a year and viewed
frankpledge once a year.

When Edward I came to the throne, over half of the approximately
600 hundred courts had gone under the jurisdiction of a private
lord owing to royal charter, prescriptive right, and usurpation.
The sheriff's powers in these hundreds varied. In some, the
sheriff had no right of entry.

In the manor courts, actions of debt, detinue, and covenant were
frequent. Sometimes there are questions of a breach of warranty of
title in agreements of sale of land. Accusations of defamation
were frequent; this offense could not be taken to the King's
court, but it had been recognized as an offense in the Anglo-Saxon
laws. In some cases, the damages caused are specifically stated.
For instance, defamation of a lord's grain would cause other
purchasers to forbear buying it. There are frequent cases of
ordinary thefts, trespasses, and assaults. The courts did rough
but substantial justice without distinction between concepts such
as tort and contract. In fact, the action of covenant was the only
form of agreement enforceable at common law. It required a writing
under seal and awarded damages. Their law was not technical, but
elastic, and remedies could include injunctions, salary
attachment, and performance of acts. The steward holding the manor
court was often a lawyer.

Some pleas in the manors of the abbey of Bec were:

1. Hugh le Pee in mercy (fine, 12d.) for concealing a sheep
for half a year. Pledges, Simon of Newmere, John of Senholt

2. William Ketelburn in mercy (fine, 13s.4d.) for divers
trespasses. Pledge, Henry Ketelburn.

3. Hugh Derwin for pasture, 6d. Richard Hulle for divers
trespasses, 12d. Henry Stanhard for pasture, 6d.

4. William Derwin for a trespass, 6d.; pledge, William
Sperling.

5. Hugh Hall gives the lord 12d. that he may have the
judgment of the court as to a tenement and two acres of
land, which he demands as of right, so he says. And it being
asserted that the said land is not free[hold] let the court
say its say. And the court says that the tenement and one of
the two acres are of servile condition and that the other
acre is of free condition. The case is reserved for the
lord's presence. Pledge, John Brian.

6. John Palmer is put in seisin of his father's tenement and
gives the lord 53s.4d. as entry money.

7. William Ketelburn gives the lord 6s.8d. that he may be
removed from the office of reeve. Pledge, Robert Serjeant.

8. William Frith for subtraction of work, 6d. John Reginald
for the same, 6d. John of Senholt, 12d. William Ketelburn,
12d.

9. For the common fine to be paid on S. Andrew's day, 100s.

10. It is presented by the chief pledges that Godfrey
Serjeant has made default; also that John le Pee has
unlawfully thrown up a bank; therefore let it be set to
rights.

11. Robert Smith is put in seisin of his father's tenement
and gives the lord four pounds for entry money. Pledge,
Robert Serjeant.

12. William Ketelburn for a trespass, 13s.4d.

13. William Fleming gives four pounds for leave to contract
[marriage] with widow Susan. Pledge, Richard Serjeant.

14. John Mabely gives the lord 3s. to have the judgment of
twelve men as to certain land whereof Noah deforces him;
pledges, Richard Smith, Ralph Bernard. The said jurors say
that Noah the Fat has right; therefore etc.

15. Agnes Stampelove gives the lord 2s. for leave to come
and go in the vill but to dwell outside the lord's land.
Pledge, Richard Smith.

16. Godfrey Tailor the younger for a trespass, 2s.

17. Whereas Godfrey Tailor the younger has demanded against
Noah a farthing land, now the action is compromised in
manner following:- -Godfrey for himself and his heirs
remises to the said Noah and his heirs all right and claim
which he has or can have in the said farthing land by reason
of the gift made by his grandfather John Tailor.

18. Agnes Mabely is put in seisin of a farthing land which
her mother held, and gives the lord 33s.4d. for entry money.
Pledges, Noah, William Askil.

19. The full court declares that in case any woman shall
have altogether quitted the lord's domain and shall marry a
freeman, she may return and recover whatever right and claim
she has in any land; but if she shall be joined to a serf,
then she cannot do this during the serf's lifetime, but
after his death she may.

20. William Alice's son is put in seisin of a bakehouse in
the King's Street, and shall keep up the house at his own
cost and gives 12d. for entry money, and 10s. annual rent
payable at three terms, viz. 3s.4d. at Martinmas, 3s.4d. at
Lady Day, 3s.4d. at Christmas. Pledges, Adam Clerk, John
Deboneir.

20. John son of Alma demands a cottage which Henry Fleming
holds and gives the lord 12d. for the oath and recognition
of 12 men; pledge, Richard Jordan. The jurors say that Henry
Fleming has the better right.

21. Baldwin Cobbler's son finds [as pledges] Walter Cobbler,
Roger of Broadwater, Robert Linene, William Frances, that
notwithstanding his stay in London he will always make suit
with his tithing and will at no time claim any liberty
contrary to the lord's will and will come to the lord
whenever the lord wills.

22. Simon Patrick gives the lord 12d. to have the judgment
of the court as to a cottage of which the widow of Geoffrey
Dogers deforces him; pledge, Simon of Strode. The said
jurors say that the said Simon has the better right. And the
said Simon remises and quit-claims all his right to his
sister Maud and her husband John Horin, [who] gives the lord
10s. for entry money; pledges, Simon Patrick, John Talk.

23. Hugh Wiking for not making suit at the lord's mill, 12d.

24. It was presented that William Derwin and John Derwin
(fine, 12d.) committed a trespass against Agnes Dene, and
the cry was raised, therefore etc.

25. Hugh Churchyard contracted [marriage] without the lord's
leave; [fine] 12d.

26. Let Juliana Forester be distrained for her default, also
William Moor.

27. John Kulbel in mercy (fine, 12d.) for not producing
Gregory Miller, and he is commanded to produce him at the
next court.

28. Hugh Andrew's son gives the lord 4s. for leave to marry;
pledge, Robert Serjeant.

29. Juliana Forester gives the lord 12d. in order that for
the future no occasion may be taken against her for neglect
of suit of court.

30. John Franklain is put in seisin of his father's tenement
and gives the lord 20s. for entry; pledge, Robert Serjeant.

31. Henry Cross gives the lord 4s. for license to marry;
pledge, Robert Serjeant.

32. Isabella Warin gives the lord 4s. for leave to give her
daughter Mary in marriage; pledge, John Serjeant.

33. It is presented by the whole township that Ralph le War
has disseised the lord of a moiety of a hedge, whereas it
had often been adjudged by award of the court that the said
hedge belongs as to one moiety to the lord and as to the
other to Ralph, and the said Ralph claims and takes to his
use the whole to the lord's damage etc. Also they say that
the said Ralph holds Overcolkescroft, which land by right is
the lord's.

34. It is presented by unanimous verdict of the whole court
that if anyone marries a woman who has right in any land
according to the custom of the manor and is seised thereof
by the will of the lord, and the said woman surrenders her
right and her seisin into the hands of the lord and her
husband receives that right and seisin from the hands of the
lord, in such case the heirs of the woman are for ever
barred from the said land and the said right remains to the
husband and his heirs. Therefore let William Wood, whose
case falls under this rule, hold his land in manner
aforesaid. And for the making of this inquest the said
William gives the lord 6s.8d.

35. The tenements of Lucy Mill are to be seized into the
lord's hands because of the adultery which she has committed
and the bailiff is to answer for them.

The chief pledges present that Cristina daughter of Richard
Maleville has married at London without the lord's licence;
therefore let the said Richard be distrained. He has made
fine with 12d. Also that Alice Berde has done the same;
therefore let her be distrained. Also that Robert Fountain
has committed a trespass against William Gery; therefore the
said Robert is in mercy; pledge, Humfrey; fine, 6d. Also
that Richard Maleville has drawn blood from Stephen Gust;
therefore he is in mercy; fine, 2s.

36. Geoffrey Coterel in mercy for a battery; fine, 12d.;
pledge, Adam Serjeant. 37. Geoffrey Coterel for trespass in
the hay; fine, 6d.; pledge, Alan Reaper. 38. Hugh of Senholt
in mercy for trespass in the green wood; fine, 6d.

37. Hugh Wiking in mercy for delay in doing his works; fine,
6d. Hugh Churchyard for trespass in [cutting] thorns; fine,
6d. Thomas Gold in mercy for trespass in the wood; fine,
3d.; pledge, Robert Grinder.

38. William Dun in mercy for subtraction of his works due in
autumn; fine, 2s. Avice Isaac for the same, 6d.; Hugh Wiking
for the same, 6d.; Agnes Rede in mercy for her daughter's
trespass in the corn [grain], 6d.

39. Walter Ash in mercy for not making suit to the lord's
mill; fine, 6d. Hugh Pinel in mercy for diverting a
watercourse to the nuisance of the neighbours; fine, 6d.;
pledge, Robert Fresel.

40. John Dun in mercy for carrying off corn [grain] in the
autumn; pledge, Adam White. Alan Reaper gives the lord 12d.
on account of a sheep which was lost while in his custody.

41. Adam White in mercy for bad mowing; fine, 6d. Hugh
Harding in mercy for the same; fine, 6d.

42. The chief pledges present that Henry Blackstone (fine,
6d.), Hugh Churchyard (fine, 18d.), Walter Ash (fine, 6d.),
Henry of Locksbarow (fine, 12d.), Avice Isaac (fine, 6d.),
Richard Matthew (fine, 6d.), Hugh Wiking (fine,--), Ralph
Dene (fine, 6d.), John Palmer (fine, 12d.), John Coterel
(fine, 6d.), John Moor (fine, 6d.), John Cubbel (fine,
12d.), Hugh Andrew (fine, 6d.), Philip Chapman (fine, 6d.),
John Fellow (fine, 12d.), Robert Bailiff (fine, 6d.), Alice
Squire (fine, 12d.), John Grately (fine,--), Richard Hull
(fine, 6d.), Osbert Reaper (fine, 6d.), and Robert Cross
(fine, 6d.), have broken the assize of beer. Also that Henry
of Senholt, Henry Brown, Hugh Hayward, Richard Moor, Juliana
Woodward, Alice Harding, Peronel Street, Eleanor Mead make
default. Also that Walter Ash (fine,--), John Wiking
(fine,--), John Smart (fine,--), and Henry Coterel have
married themselves without the lord's licence; therefore let
them be distrained to do the will of the lord.

43. Alan Reaper for the trespass of his foal; fine, 6d.

44. Philip Chapman in mercy for refusing his gage to the
lord's bailiff; fine, 3d.

45. William Ash in mercy for trespass in the growing crop;
fine, 6d.

46. John Iremonger in mercy for contempt; fine, 6d.

47. The chief pledges present that William of Ripley (fine,
6d.), Walter Smith (no goods), Maud of Pasmere (fine, 6d.),
have received [strangers] contrary to the assize; therefore
they are in mercy.

48. Maud widow of Reginald of Challow has sufficiently
proved that a certain sheep valued at 8d. is hers, and binds
herself to restore it or its price in case it shall be
demanded from her within year and day; pledges, John
Iremonger and John Robertd; and she gives the lord 3d. for
[his] custody [of it].

The Court of Hustings in London is empowered to award landlords
their tenements for which rent or services are in arrears if the
landlord could not distrain enough tenant possessions to cover the
arrearages.

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